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In a recent decision, Ediciones de la Flor SA c. Fontanarrosa Franco s. Acción Mere Declarativa (File No. 1420/08), the Court of First Instance in Civil and Commercial Matters No. 12 of Rosario, the second largest city in Argentina, ruled that the rights of the community to access unpublished works of a deceased author are superior to the moral rights of one of his heirs to oppose such publication.

Roberto Fontanarrosa, a famous cartoonist and writer whose characters are very popular in Argentina, died on 19 July 2007. After his death, his widow, Gabriela Mahy, and his son from a previous marriage, Franco Fontanarrosa, went to court to settle their rights. According to Argentine Civil Code, when a person dies and leaves assets behind, it is left to a judge to determine who the legal successors are and which assets belong to each of them. In the meantime, the widow was appointed interim manager by the court.

But there is another trial between both heirs and an editor, on copyright matters. After the death of her husband, the widower signed a publishing contract with a local publishing house, Ediciones de la Flor SRL, to posthumously print a collection of unpublished short stories left by her husband (Negar todo y otros cuentos).

The son of the artist did not take part in the agreement and later opposed the publication arguing the moral rights of the author (his father). Therefore, the publishing house went to court to request a declaration by the judge whether the agreement was valid or not (a declarative action in legal jargon). The wife of the author, even if technically not a party to the case, was summoned and given legal standing.

Before the judge the thema decidendum was the validity of the agreement signed between the widower and the publishing house, to which the son of the author opposed claiming his father’s moral rights. He argued he was not sure his father was actually the author of the work subject to the publishing agreement and his motivation was to avoid damaging his father’s reputation by allowing the print of a work of an unknown author under his name.

The moral rights of an author are those of non-economic nature; its definition, limits and interpretation tend to vary from country to country. Unlike the economic rights, moral rights are unalienable and usually perpetual. The judge in the case only recognised two: the right of integrity (forbidding any modification of the work without consent of the author) and the right of paternity (to acknowledge the author in every publication). It is unclear if the author (or his heirs) has also a moral right to decide whether to publish or not his works (right of disclosure).

In the end, the judge in charge of the Court of First Instance, Fabián Bellizia, decided the contract signed between the publisher and the widower was valid, thus authorising the publication of the work. Moreover, he deemed the moral rights argued by the son of the author were abusive. The judge stated that the tension between author’s copyright and community interest and explicitly favoured the latter over the former.

He grounded his ruling not in the Argentine Copyright Act No. 11.723, but in international treaties that have constitutional hierarchy (Art. 75 subsection 22 of the Argentine Constitution). This includes in particular: the American Convention on Human Rights, also known as the Pact of San José de Costa Rica, Art. 21, subsection 1 (the law can subordinate individual rights to social interests, i.e., the so-called doctrine of the social function of property), and the International Covenant on Economic, Social and Cultural Rights (adopted by the United Nations General Assembly on 16 December 1966), Art. 15, subsection 1 (right of every person to take part in the cultural life).

This is perhaps the first time ever that an Argentine court curtailed the exercise of moral (and economic) rights of authors by taking into account the interest of the community. The case is not yet definitive, as in Argentina double instance is mandatory. It remains to be seen what the Appellate Court will decide. In any case, it sets a controversial new judicial doctrine. This decision may be celebrated by many (the publisher, Fontanarrosa’s readers) and abjured by some (the author’s son and other author’s heirs).

The preponderance of the community’s right to access and enjoy unpublished works over the moral and economic rights of an heir is not a trouble-free interpretation. The community, a diffuse category, had no legal standing in the case. Moreover, the decision clearly benefitted, economically, Ediciones de la Flor SRL

It seems this decision is a reaction against the perceived misbalance between incentive and access trade-off in contemporary copyright law. In any case, the ruling opens the door to many challenging interpretations. If the rights of the heir, as successor of the author, can be deemed abusive in a court of law, could the moral rights of a living author be considered abusive as well? May a judge someday force an author to publish works he does not want to publish? Is there a moral right to disclose (or not) an unpublished work in Argentine law? If so, is it passed to the heirs?

Furthermore, the case raises the question of how far the doctrine of social function of (intellectual) property can be stretched? And with the resort to international human rights treaties to (supposedly) benefit the community over the heirs’ moral rights, how seriously might it undermine the goals of copyright law? Could this decision have any effect on authors’ incentives to create new works? Last but not least, will these concerns add more uncertainty to an already nervous market?